George and Jen Burden v. Lunenburg, Town of (SPR 20252337)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 25, 2025 SPR25/2337 Jennifer Warren-Dyment Town Manager Town of Lunenburg 17 Main Street Lunenburg, MA 01462 Dear Ms. Warren-Dyment: I have received the petition of George and Jen Burden appealing the response of the Town of Lunenburg (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 8, 2025, Mr. and Mrs. Burden requested: [A]ny documents related to billings and payments made to the Village at Flat Hill, Proctor, or any other companies that performed work to address issues identified in the engineering report you previously provided…. [W]e are requesting all documents related to any drainage-related projects or maintenance activities conducted in the Flat Hill Road area, particularly around the retention pond located on the south side of Cortland Circle at the intersection with Flat Hill Road. The Department provided a response on July 19, 2025. Unsatisfied with the response, Mr. and Ms. Burden petitioned this office and this appeal, SPR25/2337, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Jennifer Warren-Dyment SPR25/2337 Page 2 August 25, 2025 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fees - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per how if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s July 19th response In its July 19, 2025 response, the Town provided a fee estimate and stated the following: Please be advised, in order to comply with your request an employee must identify, locate, and compile the records requested. Title Hourly Rate Rate # of Hours Total (Maximum Charged Estimated Charge Per Hour $25) Executive $32.53/hour $25.00 4 hours to search, $100.00 Assistant, segregate, and Department of scan Public Works

Jennifer Warren-Dyment SPR25/2337 Page 3 August 25, 2025 As of the 2022 Census, the Town of Lunenburg had 11,835 residents. In accordance with 950 CMR 32.07(2)(m)(2), therefore, the Town of Lunenburg may assess fees for all employee time, including the first two hours. Please be advised, this fee is an estimate. If you would like the Town to continue processing this request, please provide the estimated fee of $150.00 to the Office of the Town Manager. The final fee will be assessed once the Town completes processing the request. If the time to complete the production is less than the estimate, you will receive a refund. If the time exceeds the estimate an additional fee will be assessed. Where the Town has stated it will charge Mr. and Ms. Burden a fee of both $100.00 and $150.00 to produce the responsive records, I find it unclear which fee is correct. The Town must clarify this. Further, although the Town has estimated that the process to compile the responsive records for production will take 4 hours of employee time, it is unclear how the Town requires this amount of time to compile responsive records. Specifically, it is not clear how many hours the Town has allocated to search, segregation and scanning of the records. It is additionally uncertain how many records there are, and the number of minutes per page the Town must spend to segregate the records. The Town must clarify these matters. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). I encourage Mr. and Ms. Burden and the Town to communicate in order to facilitate producing records efficiently and affordably. Mr. and Ms. Burden may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Town is ordered to provide Mr. and Ms. Burden with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Jennifer Warren-Dyment SPR25/2337 Page 4 August 25, 2025 Sincerely, Manza Arthur Supervisor of Records cc: George and Jen Burden